The duty to have regard to heritage assets in decisions

Two statutory duties have governed heritage decisions in England since 1990, and the courts have given them real bite. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires the decision-maker to have special regard to the desirability of preserving a listed building, its setting and any features of special architectural or historic interest it possesses. Section 72(1) requires special attention to the desirability of preserving or enhancing the character or appearance of a conservation area. The heritage duty levelling up act provisions extend that statutory approach to designated assets that previously relied on policy alone.

As at 17 September 2026, check whether those provisions are yet in force on legislation.gov.uk before relying on them in a submission, because heritage measures in the 2023 Act are brought into force by regulations rather than on Royal Assent.

The existing duties under the 1990 Act

Section 16(2) applies to applications for listed building consent. Sections 66 and 72 apply to planning applications, and they catch far more cases than people assume.

Section 66 bites whenever development affects the setting of a listed building, not merely the building itself. A new dwelling in a field opposite a listed farmhouse engages it. So does a telecoms mast visible behind a listed church tower, and so does an extension to a neighbouring property that changes how a listed terrace reads.

Section 72 applies to any development in a conservation area, including development that affects its character from outside the boundary in practical terms, though the duty itself is framed around the exercise of planning functions with respect to land in the area.

The courts have treated these duties as more than a box to tick. The Court of Appeal in the Barnwell Manor litigation held that a decision-maker must give considerable importance and weight to the desirability of preserving the setting of a listed building, and that a finding of harm carries a strong presumption against grant which the decision-maker must then weigh. Later cases have accepted that applying the Framework's historic environment policy faithfully will usually discharge the duty, but that is a consequence of doing the policy work properly, not a substitute for the duty.

The duty introduced by the 2023 Act and its scope

The gap the Levelling-up and Regeneration Act 2023 addresses is that the 1990 Act duties cover listed buildings and conservation areas only. Scheduled monuments, protected wreck sites, registered parks and gardens, registered battlefields and World Heritage Sites have been protected by national policy, and by their own consent regimes where they have one, but not by an equivalent statutory duty in planning decisions.

The 2023 Act extends a special regard duty to those categories, putting them on a similar statutory footing to listed buildings.

Why this matters practically is the weight question. A policy consideration is weighed in the ordinary planning balance. A statutory duty framed in special regard language attracts the considerable importance and weight approach the courts have applied under section 66, which is a materially higher bar for an applicant to clear where harm is found.

Which assets the duties cover

Non-designated heritage assets sit outside all of this. They are judged under the Framework's balanced approach, taking account of the scale of harm and the significance of the asset, and no statutory duty applies.

How the duties interact in a decision

Sequence matters, and officer reports that get this wrong are vulnerable.

1. Identify the heritage assets affected, including by change to setting, and describe their significance using evidence rather than assertion.
2. Assess the effect of the proposal on that significance, and characterise any harm as substantial or less than substantial.
3. Apply the statutory duty, giving considerable importance and weight to the desirability of preservation.
4. Apply the Framework's historic environment policy, weighing harm against public benefits, with clear and convincing justification required for any harm at all.
5. Reach the overall planning balance, recording that the duty has been applied rather than assuming it.

A decision that jumps from step two to step five is the classic ground of challenge. So is a report that treats less than substantial harm as though it were a neutral finding.

What a decision notice should record

Officers should record the assets identified, the significance findings, the harm conclusion and its category, the public benefits relied on, and an express statement that the statutory duty has been applied.

For an applicant, that list is a drafting brief. Write the heritage case so an officer can lift each element into the report, because a report that has to construct the analysis from scratch is a report that may construct it differently from the way you would.

Effect on plan making

The duties bite on decisions, but plan-making is where the harder heritage work now sits. Local plans allocate sites, and an allocation adjacent to a designated asset builds a conflict into the plan that individual applications then have to resolve.

Heritage impact assessment of site allocations at plan stage is the practical answer, and objectors increasingly raise it at examination. National Development Management Policies under the 2023 Act will sit above local policy once made, and the interaction with locally specific heritage policy is one of the areas worth watching on the UK planning law updates timeline.

Drafting a heritage case that engages the duties

Start with significance, not with the proposal. Historic England's guidance on setting and on statements of heritage significance sets out a workable method: identify the asset, understand what makes it significant, establish the contribution setting makes to that significance, then assess the effect of the development on it.

A heritage statement that describes the building's history for four pages and the effect of the proposal in two paragraphs has the proportions backwards.

Where below-ground archaeology is in play, an archaeological desk-based assessment establishes the potential before any field evaluation is designed. Where fabric will be lost, recording to the appropriate level is usually secured by condition, and historic building recording sets out what each level involves. Councils expect a suitably qualified author for heritage and archaeological work, and professional review before submission is strongly advised.

An illustrative example: a two-storey extension to a house within the setting of a grade II listed chapel was assessed first by describing the chapel's significance and the contribution made by the open forecourt, then by showing that the extension sat behind the existing building line and was invisible from the forecourt. The heritage statement concluded no harm, the officer report adopted that reasoning and recorded that section 66 had been applied. This example is illustrative rather than a real case.

Sources for this article: the Planning (Listed Buildings and Conservation Areas) Act 1990, the Levelling-up and Regeneration Act 2023 and the government's historic environment guidance, all current as at 17 September 2026.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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